LORDS' AMENDMENTS. (Hansard, 4 August 1873)

§ MR. VERNON HARCOURT,
in rising to move that the Lords' Amendments be taken into consideration that day three months, said, as he was about to ask the House to take a course with reference to a Bill in which much interest had been felt out-of-doors, which would put an end to its existence, he must ask indulgence while he stated the grounds of a proceeding of which he felt all the responsibility. So far as the Lords' Amendments tended to restore the Bill to the limited. objects with which it was first introduced—namely, a Bill confined to the Law of Conspiracy as affecting trade combinations—he could not and did not demur to those Amendments. The changes, however, effected by the Amendments introduced by the Government in Committee of that House, by which the Bill was transformed into a general Bill dealing with the whole Law of Conspiracy, was a change not only not made at his instance, but against his earnest and repeated protest. He entreated his right hon. Friend the Home Secretary not to persist in such a course, because he foresaw the result which had actually occurred—namely, that the Bill would be wrecked; and he told the right hon. Gentleman that the responsibility of its failure must rest upon those who counselled and insisted upon such a proceeding. He know the 1534 plausible ground on which that course was adopted. It was said that exceptional legislation in favour of a particular class could not be defended, and that if any alteration was to be made in. the law it must be applied to all alike. But it was too late to adopt such a position. Those who resisted the repeal of the Criminal Law Amendment Act and the Master and Servant Act—and Her Majesty's Government were to be reckoned among them—were not in a situation to denounce exceptional legislation. Those Acts were essentially exceptional, creating special penalties against a particular class; and to affirm that penalties ought to be exceptional, but that exemptions must be universal, was a proposition which, in his judgment, was neither logical nor just. It was because the wage-earning classes had been made the subject of legislation which was applied to no other class of the community, and still more to the operation of a Common Law jurisprudence which had affected them with exceptional severity, that that Bill was introduced to apply exceptional remedies to exceptional mischiefs. It was launched as a trade Bill; it was read a second time as a trade Bill. The first set of Amendments put on the Paper by the Government accepted the Bill in its limited character, and if it had been sent up to the House of Lords in that shape, in his opinion it would have been more satisfactorily discussed, and returned in a far less unsatisfactory state. At all events, the House of Lords would not have been able to allege the plausible pretext that they were not prepared, in the last week in July, to review the whole state of the Law of Conspiracy. The delay, probably inevitable, which was caused by that imprudent transformation, wasted just that fortnight which might have secured for the Bill in the other House a more full, and perhaps a more satisfactory, investigation. He did not say that in order to complain of his right hon. Friend; on the contrary, he desired to acknowledge, as he was bound in candour to acknowledge, the sincere desire, both on the part of the Home Secretary and the Law Officers, and also on the part of those who had charge of the Bill in the other House, to pass into law that Session a remedial and adequate measure. That House had to consider the Bill as it had come back to 1535 them. He had seen it stated in the public journals that it had been restored to the state in which it was originally introduced. If it were so, certainly the authors of the Bill would not be the persons who could have a right to complain. It was the same Bill, it was true, in title and in form; in substance it was not the same, but wholly different. The corpse remained; but under those successive transmigrations, the soul had fled, the spirit had evaporated. Let him remind the House what were the evils that the Bill proposed to remedy, and what was the mode of remedy applied. In the case of the gas-stokers, there were two sets of counts in the indictment. The second, upon which the conviction was obtained, was for conspiring to break contracts under the provisions of the Master and Servant Act; and upon that conviction the sentence of 12 months' imprisonment—for an offence which under the Act was only punishable with three months' imprisonment—was passed. Under the first counts, the Judge laid down the law to the effect that it was an offence at Common Law to combine to induce a man to alter his mode of conducting his business, and thereby to coerce his free will. It was plain that such a doctrine, as the right hon. Gentleman the Home Secretary well stated, "turned the whole flank of the legislation of 1871," which declared the legality of trade combinations. If that law was upheld, every strike was in itself, ipso facto, a crime punishable with two years' imprisonment. If Parliament was to keep faith with the working classes in respect of the pledges it had given to secure the freedom of labour, it was bound to protect it against the practical supersession of its will by this sort of Judge-made law. No one had a more sincere respect than he had for the sages of the law; but that respect was limited to their legal province— Cuilibetcredendum est in arte suâ. Even men so just as -Mansfield and Eldon and Ellenborough and Kenyon had laid down doctrines on political and economical subjects which it had been the duty of Parliament to correct, and upon no head of the Common Law had decisions gone more astray than upon trade questions. Indeed, the main object of the Acts of 1871 was to abrogate the whole body of Judge-made law on the doctrine of restraint of trade, 1536 and by it Parliament in 1871 intended to overthrow that mischievous theory. It declared against the old doctrine and repealed it in words; but no sooner was the ancient cobweb swept away than a new mesh was devised, and toils hitherto unknown were spread with the same objects, and as soon as Parliament had declared against one doctrine a. new one was invented which escaped the terms of the prohibition; and so it would always be as long as we thought fit to leave the conflict of labour and capital to be adjudicated upon by the unrestricted will of Judges, who, however learned in the law, had not always been remarkable for the largeness of their political or economical views. It was an old and a true saying— Misera est servitus ubi jus incertum; and it was to that miserable servitude that the industrial classes of this country had been and still were condemned. Men could not obey the law because they knew not what the law was. What was the present situation? A Judge—nay, two Judges had laid down the law in a manner disapproved by the Government, and condemned by the Law Officers of the Crown; and yet, for all that, until it was reversed it was the law. The Home Secretary had said one thing, and a Judge had laid down exactly the opposite doctrine; but that did not make the thing better—indeed, it made it ten times worse. In that state of things the law and the liberties of men depended on the Judge before whom they were tried. Was that just, was it safe, was it tolerable? Yet we did nothing to remove this uncertainty, and to declare the law. The working classes of this country had demanded—in his judgment they had a right to demand—that the Parliament of England should tell them what was the law by which their right—almost the only right they had, the right of labour—was regulated. The Bill, as introduced, would have met that demand. It declared that the law affecting trade combinations should be found in the will of Parliament as declared in the Statute Book, and that alone. He should be told that that was to supersede the Common Law altogether. Yes, he owned frankly it was his intention, in respect of trade combinations, to exclude the action of the Common Law, which in that matter meant nothing else but the politico- 1537 economical sentiments, it might be the unconscious prejudices, of the Judges. Wise and beneficial as the operation of the Common Law might be, and as he believed it was, in other matters, in respect of its action upon the contests of capital and labour it had never been either wise or beneficial. In that matter Parliament, and Parliament alone, could be trusted. They condemned its old developments by their Acts in 1871; they repudiated its new developments in the debates of 1873; but they had not effectually repealed their operation. The House of Lords had struck out of the Bill the provision which would have confined the indictments for conspiracy in the case of trade combinations to acts made punishable by statute. What was the consequence? The autumn and the winter were coming. You might have new prosecutions and many fresh convictions founded upon principles which the Government condemned, which the Law Officers denounced, which the House of Commons had repudiated, but which Parliament had not legally abrogated. That might be the case under the new doctrine of Common Law conspiracy, or under yet newer doctrines which might be any day extemporized, for the sources from which they flowed were inexhaustible. Men might be condemned and sent to prison for two years under doctrines which no one was prepared to justify, and the Executive Government would be called upon to enforce sentences which they could not approve. Was that a state of things which we could contemplate with tranquillity? Was it a state of affairs which was compatible with the wellbeing of society? He would ask the noble Amenders of the Bill, was that a Conservative policy? To leave confessed injustice unredressed was to his mind of all things the most revolutionary. That was what the Bill did as now returned to that House. In failing to deal with the vague and indefinite dangers of the Common Law, it afforded no substantial remedy whatever for the substantial grievance which it was intended to redress. A Bill of that character, affording no essential redress, would only be an excuse for future and stronger agitation, for, in his opinion, there was nothing more dangerous or more unstatesmanlike than to deal inadequately with questions so serious in their consequences 1538 as this. A sham remedy for a real evil was only a fresh provocation. A measure of that character might only furnish an excuse for abstaining from complete and adequate legislation. But then it would be said, though the Bill might not accomplish all that was desired, at least it did something; and they might be asked to accept it on the ground that half a loaf was better than no bread. If the bread were good and wholesome food, however limited the ration, he should recognize the force of that argument. But how did the case stand? The Bill substantially contained only one provision, for the parts of the old combination laws specified in the Schedule were only of secondary importance. That provision limited the punishment on indictments for conspiracy for breach of contract under the Master and Servants Act to the term of three months, which was the penalty for the principal offence. So far, no doubt, the Bill was valuable. It would be a solemn condemnation, enrolled on the record of Parliament, of the sentence passed in last December on the gas-stokers. In declaring that no such thing should in the future be lawful, it would be—nay, it was—a censure upon the rigour of that transaction, and he must point out to the Home Secretary that it condemned not only the sentence of twelve months, but also the commuted sentence of four months' imprisonment. So far it was a partial reparation for a great, unhappily an irremediable wrong to the men who had suffered, and the fact that both Houses of Parliament had agreed that in such a ease, a sentence of three months ought to be the extreme limit of penalty was a fact which could not be got rid of. In the face of such a declaration by the Legislature, whether that Bill passed or whether it did not, it was impossible that in the future such a sentence as that in the case of the gas-stokers could be either passed or executed. But, unfortunately, the case did not rest there. He might have assented to the passing of the Bill in its altered form, had it not been for another consideration. Having consulted with those who made the matter their special study, and particularly with Mr. Wright, he was of opinion that the passing of this Bill, instead of doing good, would only do mischief to those in whose interest it had been introduced. 1539 Under the pretence of limiting the penalty, the Bill did, in fact, affirm the offence, for if they passed the Bill it would give a statutory assent to the doctrine which Parliament had never yet sanctioned—that an agreement to break a contract within the provisions of the Master and Servant Act was a criminal offence properly indictable as a conspiracy. It could not be too often repeated, what, indeed, the hon. and learned Solicitor General had clearly pointed out, that the 14th section of the Master and Servant Act did not constitute an offence, but only supplied an exceptional remedy for the enforcement of a contract under certain circumstances. This Bill would, for the first time, recognize in an Act of Parliament an agreement to break a contract to be an indictable offence. And he would point out to the House that the generality of the language embraced not only the acts within the 14th section, but any act within the purview of the Master and Servant Act. To so dangerous and mischievous a proposition he for one could never assent. In the Bill, as originally introduced, and as finally amended by the Government and sent up to the House of Lords, no indictment for conspiracy could have been laid under the Master and Servant Act. The Government, no less than the promoters of the Bill, were distinctly pledged to this principle. The Master and Servant Act was deliberately excluded from the 1st Schedule, and if it had not been so, he should at once have discharged the Order for the Third Reading of the Bill in that House. How, then, could the promoters —how could the Government, who concurred with them in that view, now turn round and sanction a Bill which affirmed exactly the opposite view? He, for one, was deeply convinced that if he were to do so, he should be chargeable with having betrayed the interests which he had undertaken, however feebly, to defend. He felt painfully the responsibility of this decision. He had asked that the matter should be postponed till this day, in order that he might have an opportunity of conferring with those on whose judgment he relied, and they were distinctly of opinion that the Bill, as it came down to them, would aggravate rather than alleviate the grievances which it was their object to remedy. The Bill would recognize by statutory authority that to which they could not 1540 and must not assent—namely, that that was a crime as between master and servant which was treated as a crime in no other class of the community. He had, therefore, come to the conclusion—and he had come to it with regret—that rather than take such a course it was better to lose the Bill. He recognized all the mischief and all the dangers of the present unsettled state of the law; but this Bill would not settle it. It was a great misfortune, no doubt, that its consideration had been postponed so late; but the responsibility for that did not rest with the promoters of the Bill; and as regarded the limitation of the sentence, it was perfectly sure without the enactment of its provisions. He confessed he could not understand why the Government did not themselves take up the question as soon as Parliament met, especially as the hon. and learned Attorney General had himself told them that so long age as last January the Law Officers reported to the Government their opinion of the unsatisfactory state of the law as declared in the case of the gas-stokers. But, however that might be, the question had reached a stage at which it could not and would not sleep, and the promoters of the Bill might be content with the reflection that they matured the question by the discussion it had undergone. The law was not amended, but it was condemned, for after the Amendments introduced by the Government, which practically .overthrew the whole Law of Conspiracy, it would be their bounden duty—a duty from which he felt sure they would not shrink—to deal with this matter at the earliest moment. He had felt from the first what he felt still more deeply now, that this was a question which ought never to have been in the hands of a private Member; he, however, could not, from the mere vanity of the desire to pass a Bill, assent to a measure which he knew to be insufficient, and which he believed to be unsound. The Government, of course, would deal with the matter as one of the first measures next Session. He preferred, then, to leave it in their hands; but he felt it right to guard himself, when it re-appeared, from a complete assent to the principle of the 1st Schedule which they introduced in Committee. He felt bound to say this because the Lord Chancellor was in error in supposing that the promoters of 1541 the Bill, or Mr. Wright, from whose able advice and assistance they had derived so much advantage, ever approved that Schedule, to which they gave a reluctant and involuntary assent. Under all the circumstances of the case, therefore, as they were at the last moment unable to amend the Lords' Amendments, he had no alternative but to abandon the Bill. In doing so, he earnestly trusted he should have the concurrence of the Government in resisting the enactment of a principle the exact opposite of that which pervaded the Bill which, with their assent and support, was sent up to the House of Lords. The Government could not—he was sure they did not desire to—withdraw from the principles laid down in the Bill as amended by themselves; and, therefore, amidst a choice of evils, he was convinced the best course would be to remit the decision of this important matter to the deliberation of another Session—perhaps to the decision of another Parliament—in which questions of social consequence would command a more careful consideration than they had hitherto received. With that conviction, he begged to move what would amount to be the practical rejection of the measure for that Session.

MR. BRUCE
said, he was not at all surprised at the course taken by his hon. and learned Friend. On the contrary, he confessed that the Bill as returned to that House was a measure which it was not worth while to pass. In his judgment the subject ought to be postponed until the House could deal with it in a more comprehensive and satisfactory manner. His hon. and learned Friend had dealt with the Law of Conspiracy as far as it affected the relations between employers and employed. For his own part, he denied that workmen as a class were exceptionally treated; although it was, no doubt, true there were certain punishable offences which were rarely committed except by workmen. But in dealing with such cases the right rule seemed to be whether the offences were the proper subjects of punishment. If they were, the circumstance that they were only committed by one class of men in the State was no just or sufficient reason for exempting them from duo punishment. The effect of his hon. and. learned Friend's Bill, however, was to exempt workmen from 1542 the punishment which certain offences would entail if committed by a person belonging to any other class of the community, and therefore Her Majesty's Government were unable to accept the Bill in the form in which it was originally drawn. They had given the best attention they could to the subject; but the circumstances of the Session were such that it was impossible to send up the Bill at an earlier period. He deeply regretted the loss of the Bill. At the same time, considering the immense importance of the subject, he could not complain of the other branch of the Legislature for having treated the Bill pretty much as they treated others respecting which the course they took was much less excusable. His hon. and learned Friend had referred to two decisions of learned Judges which had "turned the flank" of the Act of 1871. Now, he was only aware of one dictum—not a decision, for a dictum was not, in any case, a decision—given by Mr. Justice Brett, who did lay down certain positions which, had they become the law of the land, would have effectually defeated the object of the Government, in one respect, in passing the Act of 1871. Had the jury found in accordance with the directions of the learned Judge, he had no doubt by this time there would have been an authoritative declaration whether the learned Judge had laid down the law correctly or not. But the jury did not convict on the ruling of the learned Judge in this respect; and when, shortly afterwards, the same point arose before another learned Judge, his ruling was entirely opposed to that of Mr. Justice Brett. We had, therefore, upon this subject the opinion of Mr. Justice Lush against the opinion of Mr. Justice Brett. It was almost to be regretted that the jury did not follow the ruling of Mr. Justice Brett, because an opportunity would then have been afforded for testing the opinions of the Judges, and Parliament would have been better able to consider whether a change in the law was or was not necessary. With regard to the appeal made by his hon. and learned Friend, he thought the Government, by the action they had taken, had shown that they considered the subject of great importance. While, however, most anxious to assist his hon. and learned Friend in his efforts to amend the law, 1543 he did feel there were objections in the way of dealing with so difficult a question at so late a period of the Session. As to the future, he fully admitted that the matter was one which deserved consideration at the hands of the Government, and if possible, it was advisable flint Government action should take place on the question; but he was not prepared to pledge the Government to any definite course on the subject, though it should, of course, receive their careful attention with a view to some satisfactory conclusion being arrived at, and it would be for the Government, having regard to all that had taken place (hiring the present Session, to consider during the Recess what might be proposed for the acceptance of Parliament, especially with regard to the Law of Conspiracy, which both Houses had, by their action, declared to require amendment.

§ DR. BALL
said, that in what had happened in reference to the Bill in "another place," there had been no hostility shown to an improvement in the law. What was said was, that the Bill which proposed such an important alteration of the law had arrived in the other House at so late a period of the Session that it was not possible to obtain the opinion of the Common Law Judges, or of eminent members of the Bar upon it, and therefore it was desirable that there should be some delay in order that that opinion might be ascertained. He (Dr. Ball) entirely coincided in that view. He thought such a change in the law ought not to be made without due deliberation, and he did not regard it as at all a misfortune that the Bill should be postponed, so that it might be fully considered during the Recess, both by the legal profession and by that class of the public whom its provisions would affect.

§ MR.HINDE PALMER
said, that considering the interest with which the working classes naturally regarded the progress of this Bill, he could not concur in the opinion just expressed by the right hon. Gentleman opposite. He thought, on the contrary, that it was very much to be regretted that the Bill should he dropped. Still he agreed that the mode in which the House of Lords had dealt with it was wrong and mischievous. The law, as it now stood, was impaired in public opinion by the criti- 1544 cism passed upon it in this House and. by the progress made with this Bill. In his opinion, his hon. and learned Friend was warranted in moving that the Lords' Amendments to the Bill should be considered three months hence, and he regretted that the Government were unable to give a pledge that they would deal with the subject next Session. He regretted also that the hopes entertained by thousands of the working classes for the success of a measure on which their attention was fixed had been frustrated by the Amendments of the other House.

§ MR. LEITH
urged the Government to bring in a Bill on the subject early next Session, seeing the anxious desire there was on the part of the working classes that the matter should be settled, and a fair and satisfactory law passed.

§ MR. J. LOWTHER
said, that the House stood in a peculiar position, for, with the exception of the hon. and learned Member for Oxford, hardly anyone knew what the Lords' Amendments were. They had not been printed, and it was unnecessary to point out the extreme inconvenience of discussing Amendments of which the House absolutely know nothing. He wished to give Notice that next Session he should move a Sessional Order to the effect that no Amendments of the other House he considered until they have been previously printed and distributed with the Votes.